The Nature of Terrorism

Chapter 2
The Nature and Definition of Terrorism
International terrorism is not a new phenomenon. Indeed, the origin of the word
terrorism dates back to the French Revolution of 1789 as the label used by the
establishment to describe the conduct of revolutionaries.1 Terrorism has likewise
been a subject of concern for the United Nations since the 1960s, following a series
of aircraft hijackings. Some would argue that terrorism has entered a new phase at
around the time of 11 September 2001: an age where transnational activity has
intensified and become easier, and where technology and the media can be taken
advantage of by terrorist entities to further the impact of terrorist conduct and the
delivery of messages or fear-inducing images.2
Despite the long-lasting presence of terrorism in domestic and international life,
however, there is currently no comprehensive, concise, and universally accepted
legal definition of the term. With that in mind, this chapter first considers the nature
of terrorism and the problems with achieving, as well as attempts made to achieve,
an internationally agreed-upon definition of the term. It then examines a human
rights based approach to defining terrorism, as advocated by the UN Special
Rapporteur on counter-terrorism.
2.1 The Nature of Terrorism
In its popular understanding the term terrorism tends to refer to an act that is
wrong, evil, illegitimate, illegal, and a crime. The term has come to be used to
describe a wide range of violent, and sometimes not-so violent, conduct (especially
in the hands of the media since 11 September 2001). Acts characterised as terrorist
in nature can occur both in conflict and peace-time. They may constitute crimes in
domestic and international law, and they are motivated by a complex matrix of
1
Berg (2004) and Stephens (2004, p. 457).
2
Ibid.
A. Conte, Human Rights in the Prevention and Punishment of Terrorism, 7

DOI 10.1007/978-3-642-11608-7_2, # Springer-Verlag Berlin Heidelberg 2010
8 2 The Nature and Definition of Terrorism
reasons and ideals. Their characterisation can also depend upon the person or
institution using the label and may even change over time. To give two striking
examples, the list of most wanted terrorists kept by the United States featured, at
one time, Yassir Arafat and Nelson Mandela, both of whom were subsequently
awarded the Nobel Peace Prize: evidence that this is a highly political and contro-
versial issue.3 In the months prior to his death, Yassir Arafat was in again described
as a terrorist by the United States Administration.4
2.1.1 Terrorism and Crime
Having regard to the complex nature of terrorism, and the political and popular
conceptions held about the term and about those who perpetrate terrorist acts, care
must be taken when considering and assessing situations and how they might
impact upon the topic. In the context of terrorism and crime, an interesting question
might be posed: why talk about terrorism at all? An act of terrorism will, after all,
comprise a series of acts which, in and of themselves, constitute various criminal
offences. To take an example, a bombing of an Embassy will likely involve the
unlawful possession of explosives, the wilful destruction of property and the wilful
or reckless injury to or killing of persons. Each element is a criminal offence in
most jurisdictions and, as such, is capable of being dealt with by the relevant
municipal jurisdiction.
In submissions before the New Zealand Foreign Affairs, Defence and Trade
Committee on the Counter-Terrorism Bill 2003, for example, Professor Matthew
Palmer argued that there are no good policy grounds to justify a separate, parallel
regime of counter-terrorism law.5 Having regard to the composite nature of terrorist
conduct, there might be some initial attraction to that argument. Why then add to
the extant law and why adopt different standards? Some experts would answer this
on the basis that the political nature of terrorist acts and the high level of threat that
terrorism poses to public safety and public order demand a distinction to be made
between terrorism and other criminal acts.6 There are, furthermore, crimes that
cannot be prosecuted without defining terrorist acts or membership in a terrorist
organisation including, for example, the offence of financial support to a terrorist
3
This list is maintained by the United States Federal Bureau of Investigation and may be accessed
online: http://www.fbi.gov/wanted/terrorists/fugitives.htm.
4
Associated Press, Timeline: Yasser Arafat, Foxnews.com US and the World, 8 February 2005,
online: http://www.foxnews.com/story/0,2933,136880,00.html.
5
New Zealand, Counter-Terrorism Bill. Government Bill. Commentary, as reported from the
Foreign Affairs, Defence and Trade Committee (2003) 2. See also Palmer (2002); Bassiouni
(1981, p. 11); Roach (2002, pp. 124126); Roach (2005, p. 512); and the report of the Indepen-
dent Reviewer Lord Carlile of Berriew QC, The Definition of Terrorism (Presented to Parliament
by the Secretary of State for the Home Department, March 2007), para 22 (proposition 1).
6
Ganor (2005, pp. 89).
2.1 The Nature of Terrorism 9
entity, common to Australia, Canada, New Zealand and the United Kingdom, as
well as many other nations (see Chap. 14). Taking a practical enforcement-based
approach to the issue, and recognising the trend for many terrorist acts to be
perpetrated transnationally rather than exclusively within a single territory, the
creation of distinct terrorist offences with common elements throughout the inter-
national community would also assist in issues of mutual legal assistance and
extradition.7 At a further end of the scale, should terrorism instead be judged as
an act of warfare and the struggle against it conducted according to the norms and
rules of war? These are issues considered further in Chap. 12.
2.1.2 Terrorism and Warfare
Researchers are divided in their opinions on whether terrorism should be considered

a criminal act or a political-military act. Jenkins (former head of the Terrorism
Project at the Rand Institute) has observed that if one looks at terrorism as a crime,
there will be a need to gather evidence, arrest perpetrators and put them on trial.
This approach provokes problems of international cooperation, he argues, and is not
a suitable response for acts of terrorism perpetrated by a distant organisation or a
country involved in terrorism.8 Approaching terrorism as warfare, however, one
can be less concerned with the aspect of individual guilt, and an approximate
assessment of guilt and intelligence are sufficient. The focus is not on a single
perpetrator, but rather on proper identification of the enemy. Contrary to Jenkins,
Barzilai argues that terrorists are criminals, and that if terrorism-related crimes are
treated differently to ordinary crimes, this will result in municipal authorities
employing tougher, more stringent tools to gain illegitimate political advantages.9
2.1.3 Features of Terrorist Conduct
Whether treated as crimes or acts of warfare, terrorist conduct is distinguishable by

reason of its focus, participants, and victims. Each of those factors has parallels with
warfare and crime, but terrorism is distinct by virtue of its combination of factors.
First, setting aside the situation of organised crime, criminal conduct is normally
focused upon a particular goal (e.g. the burglary of premises to obtain stereo
equipment), with a final end-point (e.g. obtaining the desired stereo equipment).
7
It must be acknowledged that, for the reasons that follow in this chapter (concerning the lack of a
common definition of terrorism), this practical advantage is currently limited. On the subject of
mutual legal assistance and extradition in the context of counter-terrorism, see Duffy (2005,
pp. 106115). See also the discussion on the Lockerbie Cases in Chap. 3, Sect. 3.2.2.1.
8
Jenkins (1999, p. xii).
9
Barzilai (2000).
Terrorist acts have, in contrast, shown themselves to be generally continuous, given

the much longer-term motivations of terrorist organisations; developing, with
individuals perhaps starting as youths throwing stones but eventually moving to
sophisticated operations such as that undertaken on 11 September 2001; and
sometimes escalating, such as the intensification of acts by Al-Qaida from the
bombing of US Embassy in Nairobi in 1998, to the attack on the USS Cole in the
Yemen in 2000, to the attacks on 11 September in New York, Washington DC, and
Pennsylvania.
Secondly, terrorist conduct is unique by virtue of its participants. Again setting
aside organised crime, most criminal enterprises are undertaken by the few and as
quietly as possible. Terrorist organisations, while being secretive about impending
operations and the identity of secret cells and the like, instead rely on publication of
their causes and the recruitment of as many as possible to further those objectives.
Finally, while criminal acts are targeted, terrorist ones are often indiscriminate.
2.1.4 The Ideological Nature of Terrorism
The most important feature of terrorism, distinguishing it from other criminal acts
or conduct during armed conflict, is the motivation of terrorists and the codex
against which terrorists measure their conduct. Generally speaking, those perpe-
trating normal criminal offences do so out of some personal, hedonistic motiva-
tion whether that be the material rewards of a burglary, the thrill and high of
challenging the system or using drugs, or the desperation of stealing necessities
where no alternatives appear to be available. Personal gain is the common feature of
criminal conduct, setting aside crimes of passion and those of the mentally insane.
In contrast, the primary motivation of terrorists is altruistic, motivated by a higher
cause or ideology that is greater than his or her personal impulses or gains. It should
be recognised that the individual terrorist may not be motivated in this way, instead
acting out of a sense of revenge borne out of the individuals personal or familial
experience or perceptions of ill-treatment or humiliation, a matter recognised, for
example, by the Israeli Security Agency and the Israeli Counter-Terrorism
Bureau,10 and also implied in the United Nations Global Counter-Terrorism
Strategy (see Chap. 13).11 It can be generally said, however, that a terrorist (or at
least the entity that recruited the individual) will act for the furtherance of an
external cause (whether it be a localised secessionist movement or global jihad)
and for the benefit this has to both the cause and the people of it.12 Combined with
10
Report of the Special Rapporteur on the promotion and protection of human rights and funda-
mental freedoms while countering terrorism, Martin Scheinin, Mission to Israel, including visit to
occupied Palestinian Territory, UN Doc A/HRC/6/17/Add.4 (2007), para 5.
11
United Nations Global Counter-Terrorism Strategy, UN GAOR, 60th Sess, 99th Plen Mtg, UN
Doc A/Res/60/288 (2006), Pillar I, preambular para.
12
Ilan (2005).
the honour derived from such conduct in this life, and the rewards in the next, the
motivations of a terrorist are far beyond those of an ordinary criminal offender.
Consider, for example, the following description of rewards attainable by the
Shahid (suicide bomber) in the afterlife:13
When the Shahid meets Allah, he will be forgiven from the first drop of blood. He is saved
from the grave. He sees his place in heaven. He is saved from the great horror. He is given
72 dark-eyed women. And he is champion of the right for 70 members of his family. A
crown is placed on his head, with a precious gem. That is better than anything that exists in
this world.
Added to these distinct motivations are the standards against which terrorists
measure their conduct. The fact that a terrorist act might be unlawful according
to the law of the State in which the act is perpetrated, or under international law, is
argued to be irrelevant to a terrorist. Terrorists measure their conduct against the
codex of the ideology they are pursuing.14 If the ideology mandates the killing of
Jews or Christians,15 then that killing is not murder but, instead, a legitimate and
appropriate act. The consequence of these features is significant. Standard crimi-
nology does not apply. The notion of personal deterrence is largely irrelevant, with
the language of terrorists often entirely divorced from that of the normal criminal
offender.
Moving from these more abstract ideologies, one can also categorise the impetus
for particular terrorist acts as falling within one or more of the following four
motivations: secession; insurgency; regional retribution; and the phenomenon of
what has come to be known as the global jihad.
2.1.4.1 Secession
It is an all-too-common assertion that one persons terrorist is anothers freedom

fighter.16 For instance, would a bombing carried out by a rebel group, which is
directed towards the destabilisation of dictatorial authorities perpetrating horrific
crimes against the local population (the Pol Pot Regime, for example), amount to a
terrorist act or an act of a legitimate liberation movement? Such propositions have
been the subject of much debate.17
13
As identified in a statement by Dr Ismail Radwan, Sheik of the Ajlin Mosque in the Gaza Strip
entitled Paradise, uncovered by intelligence agencies and aired on Israeli television in 2005.
14
Ibid.
15
As called for in the World Islamic Fronts Jihad Against Jews and Crusaders, 23 February
1998 (signed, amongst others, by Usama bin Laden), online: http://www.fas.org/irp/world/para/
docs/980223-fatwa.htm.
16
Such assertions were made, for example, in numerous submissions to the New Zealand Foreign
Affairs, Defence and Trade Committee on the Terrorism Suppression Bill (NZ). See, amongst
others, the submissions of the Socialist Party of Aotearoa, 31 November 2001, Parliamentary
Library Ref TERRO/61. In the context of Al-Qaida, see Meltzer (2002).
17
See, for example, Ganor (2000).
Early resolutions of the General Assembly addressing the issue of terrorism

contained express affirmations of the principle of self-determination. In the very
first resolution of the United Nations on the subject of terrorism, the General
Assembly expressed deep concern over terrorism, urged States to solve the problem
by addressing the underlying issues leading to terrorist conduct, and then stated that
the General Assembly:18
Reaffirms the inalienable right to self-determination and independence of all peoples under
colonial and racist regimes and other forms of alien domination and upholds the legitimacy
of their struggle, in particular the struggle of national liberation movements, in accordance
with the purposes and principles of the Charter and the relevant resolutions of the organs of
the United Nations;
A number of subsequent General Assembly resolutions echoed this affirmation,

adding that such liberation movements should also be conducted in accordance with
the Declaration on Principles of International Law Concerning Friendly Relations
and Co-operation among States.19 One of the most problematic issues in this area is
distinguishing terrorists from lawful combatants in legitimate struggles for self-
determination. Here, States that do not recognise a claim to self-determination will
commonly claim that those using force against the States military forces are
terrorists.
The right to self-determination is the right of a people (sharing a common
historical tradition, racial or ethnic identity, cultural homogeneity, linguistic
unity, religious or ideological affinity, territorial connection, and or a common
economic life)20 to determine their political status and freely pursue their own
economic, social and cultural development.21 It holds a prominent position within
various international documents.22 However, the precise scope of this right, and in
18
GA Res 3034 (XXVII), UN GAOR, 27th Sess, 2114th Plen Mtg, UN Doc A/Res/27/3034 (1972),
para 3.
19
The Declaration on Principles of International Law concerning Friendly Relations and Co-
operation among States was adopted by the General Assembly in GA Res 2625(XXV), UN
GAOR 25th Sess, 1883rd Plen Mtg, UN Doc A/Res/25/2625 (1970). The further qualification
was first added by GA Res 38/130, UN GAOR, 38th Sess, 101st Mtg, UN Doc A/Res/38/130
(1983), preambular para 6, and reiterated within: GA Res 40/61, UN GAOR, 40th Sess, 108th Plen
Mtg, UN Doc A/Res/40/61 (1985), preambular para 8; GA Re 42/159, UN GAOR, 42nd Sess, 94th
Plen Mtg, UN Doc A/Res/42/159 (1987), preambular para 12; GA Res 44/29, UN GAOR, 44th
Sess, 72nd Plen Mtg, UN Doc A/Res/44/29 (1989), preambular para 17; and GA Res 46/51, UN
GAOR, 46th Sess, 67th Plen Mtg, UN DocA/Res/46/51 (1991), preambular para 14.
20
As defined by the United Nations Educational, Scientific and Cultural Organization, Final Report
and Recommendations of the International Meeting of Experts on the further Study of the Concept
of the Right of People, UNESCO Archives Doc SHS-89/CONF.602/7 (1990), para 22.
21
Western Sahara, Advisory Opinion (1975) ICJ Reports, 31.
22
Including: the International Covenant on Economic, Social and Cultural Rights, opened for
signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) and the Interna-
tional Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS
171 (entered into force 23 March 1976), common article 1; the Charter of the United Nations 1945,
articles 1(2), 55 and 56, and chapter IX; the Declaration on Principles of International Law
particular whether it includes a right to use armed force and engage in wars of
national liberation, has always been a point of contention.23 This controversy, as
recognised by the Special Rapporteur to the former Sub-Commission on the
Promotion of Human Rights, has been the major obstacle to the development of a
comprehensive definition of the term terrorism, and of the completion of work
towards the Comprehensive Convention on International Terrorism.24 The Com-
prehensive Convention is to be considered further later in this chapter, and also in
Chap. 3 (Sect. 3.1.2), while the interface between terrorism and international
humanitarian law is considered in Chap. 12 (Sect. 12.2.2/1). What can be said at
this point is that, since its adoption of the 1994 Declaration on Measures to
Eliminate International Terrorism, the General Assembly has made it clear that
self-determination does not legitimate the use of terrorism by those seeking to
achieve self-determination.25 This is a point reiterated by the Special Rapporteur on
the promotion and protection of human rights and fundamental freedoms while
countering terrorism, in the context of the terrorist organisation ETA (Euskadi Ta
Askatasuna) in Spain, whose proclaimed political goal is self-determination for the
Basque Country.26
2.1.4.2 Insurgency and Regional Retribution
The second and third motivations for terrorist acts are those arising out of the
occupation of a territory by foreign military forces, either in the form of insurgency
occurring within the occupied territory or acts directed towards occupying forces
but occurring outside the territory. Insurgency and regional retribution have been
portrayed by many as the prime motivations for terrorist events linked to the
occupations in Afghanistan and Iraq during these early years of the twenty-first
century. Examples include the attack on United Nations headquarters in Baghdad
Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of
the United Nations (n 19); the Declaration on the Granting of Independence to Colonial Countries
and Peoples, adopted under GA Res 1514(XV), UN GAOR, 15th Sess, 847th Plen Mtg, UN Doc
A/Res/15/1514 (1960); and the Principles which should guide members in determining whether or
not an obligation exists to transmit the information called for under article 73e of the Charter
adopted under GA Res 1541(XV), UN GAOR, 15th Sess, 948th Plen Mtg, UN Doc A/Res/15/1541
(1960).
23
Report of the Sub-Commission Special Rapporteur on terrorism and human rights, Specific
Human Rights Issues: New priorities, in particular terrorism and counter-terrorism, UN Doc E/
CN.4/Sub.2/2004/40 (2004), para 30. See also the Rapporteurs 1997 report, UN Doc E/CN.4/
Sub.2/1997/28.
24
Sub-Commission Special Rapporteur 2004 report (ibid) para 28.
25
Declaration on Measures to Eliminate International Terrorism, adopted under GA Res 49/60, UN
GAOR, 49th Sess, 84th Plen Mtg, UN Doc A/Res/49/60 (1994), para 1.
26
Special Rapporteur on the promotion and protection of human rights and fundamental freedoms
while countering terrorism, Mission to Spain, UN Doc A/HRC/10/3/Add.2 (2008), paras 3, 46 and
47. See also Scheinin (2006).
on 19 August 2003, which claimed the lives of the Special Representative of the
Secretary-General, Sergio Vieira de Mello, and 21 other men and women. Follow-
ing the commencement of the multi-national Operation Enduring Freedom in
Afghanistan, a manifesto issued by Salem Almakhi and first aired on Aljazeera
in October 2002, announced a warning to Christians and members of the alliance
waging war against Afghanistan and Al-Qaida.27 A further example can be seen
in a video statement of Noordin Mohamad Top directed to various nations, includ-
ing Australia and the United Kingdom, and identifying senior members of the
Australian Government:28
As long as you keep your troops in Iraq and Afghanistan and intimidate Muslim people, you
will feel our intimidation. . . You will be the target of our next attack. . . Our enemy is
America, Australia, England and Italy. . . We especially remind Australia that you, Downer
and Howard, are killing Australia, leading it into darkness and misfortune and mujahedeen
terror. . .
2.1.4.3 Islam and the Global Jihad
Finally, closely linked to the ideological nature of terrorism, is the question of

Islam and terrorism. An all-too-common and unfortunate expression is that not all
Muslims are terrorists, but all international terrorists are Muslim. While that is not
entirely correct, and certainly not advocated by the author,29 it is true that the
modern phenomenon of international terrorism (in the form of what has come to be
known as the Global Jihad) is perpetrated by radical Muslims. The adoption of
terrorism by radical Islamic movements as their modus operandi stems, in part,
from the historical development and subsequent manipulation of the Islamic faith.30
Islam began as a faith of a small community of believers during the seventh
century in what is now Saudi Arabia.31 It is based upon the belief that Muhammad,
a respected businessman in Mecca in around 600 AD, received revelations from
27
Salem Almakhi, Mending the Hearts of the Believers, online: http://www.jihadonline.brave-
pages.com/mending.htm. Salem Almakhi is said to be one of Usama bin Ladens supporters and
admirers, and personally knowledgeable of Al-Qaida operations: see Fighel and Kehati (2002,
un-numbered para 23).
28
Peter Gelling, Indonesia Television Airs Terror Warning (International Herald Tribune, 17
November 2005), online: http://www.iht.com/articles/2005/11/17/news/indo.php.
29
Secessionist-motivated terrorist organisations, for example, are local to a particular State and
often bear the racial and religious characteristics of that State. Such organisations are capable of
undertaking, and have undertaken, transnational acts of terrorism.
30
See Palbir Punj, Root of Islamic Radicalism (The Pioneer, 31 August 2005), online: http://
dailypioneer.com/columnist1.asp?main_variable=Columnist&file_name=punj%2Fpunj66.txt&
writer=punj. See also; Juergensmeyer (2003); Khan (2006); Rosand (2007, pp. 45); Saggerman
(2004); and Shay (2002). Contrast with Rehman (2005).
31
Following Mohammads flight from Mecca, where his teachings had been rejected, he settled in
Medina (the second most holy site for Muslims, after Mecca and before Jerusalem) where Islam
was accepted by the community and from where it grew.
Allah (God) that were later written down in the Quran.32 A period of divisions
followed the death of the prophet Muhammad, leading to the characterisation of
two Muslim loyalties today: the Sunni (representing the vast majority of Muslims
today under the Sunnah Islamic faith); and the Shiite (who treat Muhammads son-
in-law Ali as their caliph and subsequently elevated him to the status of prophet).33
Within what is now the main-stream Sunnah faith, four schools of interpretation
of the complex text of the Quran came to be accepted as legitimate (from liberal to
radical): the Hanafi, Maliki, Shafii, and Hanbali.34 The greater majority of Mus-
lims advocate and practice the more moderate interpretations of the Sunnah revela-
tions of the Quran. For such Muslims, their faith advocates tolerance of others and
their religious choices and customs. On the subject of those that are not Muslim, for
example, the Quran instructs:35
4. And I shall not worship that which you are worshipping.
5. Nor will you worship that which I worship.
6. To you be your religion, and to me my religion.
The core of Islamic life for all Sunnah is said to be the five pillars of Islam:
publicly bearing witness to the basic affirmation of faith; saying prescribed prayers
five times a day; fasting during the month of Ramadan; giving a tithe or alms for
support of the poor; and making a pilgrimage to Mecca at least once during the
believers lifetime, if this is possible.36
Calls for the killing of Jews and Christians by the likes of Usama bin Laden and
Al-Qaida is based upon a radical reading of the already conservative school of
Sunnah interpretation (Hanbali). The motivation of Al-Qaida, for example, is the
spreading of the Muslim faith and the elimination of what such groups see as
the evil of modernity.37 The advancement of religious beliefs is not, in and of
itself, problematic and is in fact a common tenet of almost all religions. Viewing
modernity (democracy, capitalism, Statehood) as an evil that must be eliminated at
all cost is, however, an extreme view and one that poses a threat to all western
nations. The World Islamic Front Statement of 1998, entitled Jihad Against Jews
32
See Wuthnow (1998, pp. 383393). See also Abu-Rabi (1995).
33
Ali was a cousin of Muhammad who was an early convert to Islam at the age of 10, and became
the husband of Muhammads daughter Fatimah. Sunni Muslims consider Ali to be a companion of
Muhammad only and therefore consider Shiite Muslims to be following a false prophet.
34
These schools were named after their four founders Abu Hanifa, Abu Abdullah, Mohammad bin
Idris, Ahmad bin Hanbal respectively.
35
Surah (chapter) 110, Al-Kafirun (The Disbelievers), Ayat (verses) 46: The Noble Quran in
the English Language (Saudi Arabia, Darussalam, 1996) 788.
36
Wuthnow (1998, pp. 383393).
37
The International Policy Institute for Counter-Terrorism has written much on this subject. See,
for example (available online: http://www.ict.org.il): Fighel and Shahar (2002), Shahar (2002),
Kahati (2003), and Kahati and Fighel (2003).
and Crusaders,38 purports to be a fatwa (religious ruling) requiring the killing of

Americans, and claims to base itself upon a call by Allah to slay the pagans wherever
ye find them, seize them, beleaguer them, and lie in wait for them in every stratagem
(of war).39 The 1998 Statement concludes with the following direction:40
We with Allahs help call on every Muslim who believes in Allah and wishes to be
rewarded to comply with Allahs order to kill the Americans and plunder their money
wherever and whenever they find it. We also call on Muslim ulema, leaders, youths, and
soldiers to launch the raid on Satans US troops and the devils supporters allying with
them, and to displace those who are behind them so that they may learn a lesson.
While this fatwa is particularly directed towards Americans, due to the purported
occupation and plundering of the Arabian Peninsula by the United States during the
1991 and 1998 Gulf wars,41 the sentiment of the jihad is one that is opposed to
modernity in general. Its desire is to eliminate modernity and return to the era when
Islam formed a prosperous ummah (community of Islamic believers) in the Middle
East and beyond, without restriction by State borders: an era in which modernity
was absent in the region.
Following the commencement of the multi-national Operation Enduring Free-
dom in Afghanistan a further manifesto, issued by Salem Almakhi, announced a
warning to Christians and members of the alliance waging war against Afghanistan
and Al-Qaida.42 This most palpably applies to States participating in Operation
Enduring Freedom, but is also of much broader application. It conceivably attaches
to all members of the United Nations taking action against Usama bin Laden, the
Taliban and Al-Qaida pursuant to various Security Council resolutions and the
directions of the Councils 1267 Sanctions Committee.43 The manifesto finally
instructs:44
Anyone who possesses an arrow in his quiver, make haste and [shoot] it for the sake of
Allah, and aim it at the enemies of religion the Jews and the Christians [. . .].
Along the same lines, an audio tape aired by Aljazeera in 2003, a senior aide to
Usama bin Laden, Ayman Zawahri, exhorted his audience with the following
words:45
38
World Islamic Front, Jihad Against Jews and Crusaders (published in the Arabic Newspaper
Al-Quds al-Arabi [London, 23 February 1998], p. 3), un-numbered para 1. An English translation
of the statement can be found online at http://www.fas.org/irp/world/para/docs/980223-fatwa.htm.
39
The quoted phrase is taken from The Holy Quraan (n 35) 9:5.
40
Jihad Against Jews and Crusaders (n 38) un-numbered para 8.
41
Ibid, un-numbered para 3.
42
Ibid, un-numbered para 23.
43
Concerning the Security Council resolution 1267 (1999) Sanctions Committee see Chap. 3,
Sect. 3.2.4.2.
44
Salem Almakhi (n 27) penultimate paragraph.
45
Aljazeera, New Al-Qaeda Tape Calls for Attacks (Aljazeera.net, 21 May 2003), online: http://
english.aljazeera.net/archive/2003/05/200849135715154191.html.
Oh Muslims! Carry out attacks against the embassies, companies, interests and officials of
the US, Britain, Australia and Norway. Burn the ground under their feet.
Opposed to this, writers such as Al-Muhajabah condemn the use of terrorism and
point to the following Quranic versus as restricting the circumstances in which
recourse to acts of aggression may be had:46
Permission to fight (against disbelievers) is given to those (believers) who are fought
against, because they have been wronged [emphasis added].47
And what is wrong with you that you fight not in the Cause of Allah, and for those weak,
ill-treated and oppressed among men, women and children [emphasis added].48
Allah does not forbid that you to deal justly and kindly with those who fought not
against you on account of religion nor drove you out from your homes. Verily, Allah loves
those who deal with equity. . . It is only as regards those who fought against you on account
of your religion, and have driven you out of your homes, and helped to drive you out, that
Allah forbids you to befriend them [emphasis added].49
So it is that the one text of a relatively young religion has given rise to two Muslim
loyalties, with four schools of thought arising from the more widely-practised
Sunnah devotion of Islam. Of those four schools, the minority conservative school
of Hanbali50 has been adopted and distorted by some to advocate jihad, through
terrorist means, against modernity.51
2.1.5 Rationalising a Distinct Approach to Terrorism
The need for a distinct approach to the criminalisation and suppression of terrorism
should be apparent from the discussion of the nature of terrorism to this point.
Approaching terrorism as a phenomenon justifying a distinct regime of counter-
terrorism law is not just supported by those features of terrorist conduct discussed.
Such an approach is also driven by most States. The desire of States to take a special
approach to the suppression of terrorism appears to be rooted in a combination of
factors, not all of which are unique to terrorism, but which may cumulatively have
46
Al-Muhajabah, Some Quranic Versus on Jihad, online: http://www.muhajabah.com/quran-
jihad.htm.
47
Surah (chapter) 22, Al-Hajj (The Pilgrimage), Ayat (verse) 39: The Quran (n 34) 426.
48
Surah 4, An-Nisa (The Women), Ayat 75: The Quran (ibid) 124.
49
Surah 60, Al-Mumtahinah (The Woman to be Examined), Ayat 89: The Quran (ibid) 700.
50
Contrary to the more moderate schools of Islam, the Hanbali school of Sunni Islam prohibits all
forms of public religious expression other than that of those who follow the Hanbali school. The
government of Saudi Arabia vigorously enforces this school of Islam, for example, and allows
judges to discount the testimony of people who are not practicing Muslims or who do not have the
correct faith: see GlobalSecurity.org, Hanbali Islam, online: http://www.globalsecurity.org/
military/intro/islam-hanbali.htm.
51
Interview with Yoni Fighel, Researcher at the International Policy Institute for Counter-
Terrorism, 31 August 2005, Herzlyia, Israel.
been treated by States as calling for a different approach. The common thread in
each factor, or at least in the way each factor can be perceived, is not unique: the
political interests of States.
The most apparent reason for States taking distinct action against terrorism is the
fear-inducing nature of terrorist conduct and the attention this brings to terrorist
events through the media and public alike. This in turn adversely affects the
credibility of national executive administrations in the eyes of the national public,
and also the credibility of the United Nations as an institution established to
maintain international peace and security in the eyes of the international commu-
nity. The more severe the terrorist act, the greater the terror induced, to the extent
that the public may in fact be paralysed in a real sense, affecting their freedom of
movement and association, and enjoyment of life.52 That again serves to adversely
impact upon national and international executive credibility. As will be seen
through the discussion of international documents on terrorism that follows, terror-
ism is therefore viewed as being a crime of international concern (using the
wording of the Rome Statute on the International Criminal Court) and contrary to
the principles of the Charter of the United Nations.53 Terrorism was, in that regard,
proposed to be included within the jurisdiction of the International Criminal Court,
to stand beside genocide, war crimes and crimes against humanity.
A further issue of concern to States is the transnational nature of terrorist
offending. Whether through Embassy bombings on foreign soil or direct attacks
within the territory of a State (such as the 2001 attacks in the United States and
those in 2005 in London), national interest and national security are often affected.
Through an international framework on counter-terrorism, those interests can be
arguably better protected through the ability to secure mutual legal assistance and
the extradition of perpetrators of such attacks, and cut off the means by which
terrorist organisations operate.
A final and individual self-interest of States is that of combating revolutionary
and secessionist terrorism, that is, terrorism occurring solely within a State and
aimed at destabilising or overthrowing the established government of the State, or
conduct aimed at breaking away from the State.54 The established government
has, in those circumstances, a very real and pressing desire to eradicate terrorism.55
The international community, in seeking to maintain the integrity of statehood and
the stability of regions, also has a vested interest. Examples include the Basque
52
As explicitly recognised within various resolutions of the United Nations General Assembly,
including GA Res 54/164, UN GAOR, 54th Sess, 83rd Plen Mtg, UN Doc A/Res/54/164 (1999).
On the impact of terrorism upon the rule of law and human rights see Chap. 13.
53
See, for example, the Report of the Secretary-Generals High-level Panel on Threats, Challenges
and Change, A More Secure World: Our Shared Responsibility, UN Doc A/59/565 (2004), para 145.
54
For more discussion on this point, see Ganor (2000).
55
By way of example, Indias Prevention of Terrorism Act 2002 describes a terrorist act as one
including conduct by a person with intent to threaten the unity, integrity, security or sovereignty
of India (section 3(1)(a) of the Act).
2.2 Reaching Consensus on a Legal Definition of Terrorism 19
Fatherland and Liberty movement in Spain,56 the Kurdistan Workers Party in

Turkey57 and the Liberation Tigers of Tamil Eelam in Sri Lanka.58
2.2 Reaching Consensus on a Legal Definition of Terrorism
The foregoing discussion has considered various popular and political aspects
involved in characterising terrorism. These are complex and open to differing,
and strongly held, views. It is therefore of little surprise that the international
community has been unable to reach consensus on a concise and comprehensive
legal definition of the term terrorism, not even within the UN Global Counter-
Terrorism Strategy.59 Confirming many of the issues identified earlier in this
chapter, the United Nations Terrorism Prevention Branch has described terrorism
as a unique form of crime, often containing elements of warfare, politics and
propaganda, and:60
For security reasons and due to lack of popular support, terrorist organisations are usually
small, making detection and infiltration difficult. Although the goals of terrorists are
sometimes shared by wider constituencies, their methods are generally abhorred.
The failure of the international community to achieve consensus on a global

definition of terrorism has been criticised by many. The founding Executive
Director of the International Policy Institute for Counter-Terrorism, Boaz Ganor,
has proposed that UN Security Council resolutions can only have an effective
impact once all States agree upon what types of conduct constitute terrorist
acts.61 Thirteen universal conventions related to terrorism have been adopted
since the 1970s (see Chap. 3, Sect. 3.1.1). The conventions, however, deal with
specific forms of terrorist conduct and are thereby precise in nature and not of
general application. Furthermore, they are not a solution in themselves, since
treaties are only binding upon States parties.62 Nor does the United Nations Charter
contain a definition of the term. Likewise, the Rome Statute of the International
56
See Appendix A Background Information on Designated Foreign Terrorist Organizations in
Howard and Sawyer (2003, p. 507).
57
Ibid, 514.
58
Ibid, 516.
59
Adopted by the United Nations General Assembly under GA Res 60/288, UN GAOR, 60th Sess,
99th Plen Mtg, UN Doc A/Res/60/288 (2006).
60
United Nations Office on Drugs and Crime, UN Action Against Terrorism, online: http://
www.odccp.org/terrorism.html (as accessed 19 June 2002; copy on file with the author).
61
Ganor (1999).
62
By application of the legal principle pacta tertii nec nocent nec prosunt (treaties are not binding
upon States unless their consent to be bound has been signified) as reflected within article 34 of
the Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS
331 (entered into force 27 January 1980).
Criminal Court does not include terrorism as one of the international crimes within
the Courts jurisdiction.63 The Court has within its jurisdiction the most serious
international crimes, according to its preamble. It was proposed, within the draft
Statute, to include terrorism within the Courts jurisdiction, but the failure of States
to agree upon a definition of the term resulted in the crime being removed from the
scope of the Courts jurisdiction and subject matter of the constitutive treaty.64
Perhaps most surprising is the fact that Security Council resolution 1373 (2001),
which imposes various obligations concerning counter-terrorism upon member
States of the United Nations, does not define the term.65
2.2.1 Attempts to Define Terrorism
Attempts to define terrorism have been made since before the establishment of the
United Nations.66 The Draft League of Nations Convention for the Prevention and
Punishment of Terrorism was to provide that terrorism comprised:67
All criminal acts directed against a State and intended or calculated to create a state of terror
in the minds of particular persons or a group of persons or the general public.
This Draft Convention never came into force as not enough States ratified it, due
mainly to dissent over definition of the term.68
There have been suggestions that terrorism be defined as the peacetime equivalent
of war crimes. In a report to the United Nations Office on Drugs and Crime (UNODC),
Alex Schmidt proposed taking the already agreed upon definition of war crimes
(comprising deliberate attacks on civilians, hostage-taking and the killing of prisoners)
63
Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187
UNTS 90 (entered into force 1 July 2002).
64
There are arguments, however, that terrorist acts fall within the jurisdiction of the Court as
constituting crimes against humanity (crimes under article 7 of the Rome Statute).
65
Having said this, the lack of definition was most likely due to the fact (as will be seen through
subsequent discussions) that there is a lack of consensus on just what amounts to terrorism. In a
desire to issue a forceful, and at the same time early, resolution in the wake of September 11 it is
likely that the Council saw use of the term, without definition, as the only viable option in the short
term. The problem with this approach is that it has left the question of defining the term with
individual member States, leading to inconsistent definitions and, arguably, a weak rather than
forceful resolution.
66
For an overview, see Golder and Williams (2004, pp. 273275). See also Saul (2006).
67
As recorded by the United Nations Office on Drugs and Crime on its website, Definitions of
Terrorism, online: http://www.odccp.org/terrorism_definitions.html (as accessed 19 June 2002;
copy on file with the author).
68
Geneva Convention for the Prevention and Punishment of Terrorism 1937 (Draft). See
discussion on this point within the website of the United Nations Office on Drugs and Crime,
Definitions of Terrorism (ibid). See also Andreu-Guzman (2002, p. 185).
and extending it to peacetime.69 Terrorism would then be defined as the peacetime

equivalents of war crimes. It does not appear, however, that this has gained any
popular acceptance. Schmidts earlier and more complex definition of terrorism is, on
the other hand, cited by UNODC as representing academic consensus:70
An anxiety-inspiring method of repeated violent action, employed by a (semi-) clandestine
individual, group or state actors, for idiosyncratic, criminal or political reasons, whereby in
contrast to assassination the direct targets of violence are not the main targets. The
immediate human victims of violence are generally chosen randomly (targets of opportu-
nity) or selectively (representative or symbolic targets) from a target population, and serve
as message generators. Threat and violence-based communication processes between
terrorist (organisation), (imperilled) victims, and main targets are used to manipulate the
main target (audience(s)), turning it into a target of terror, a target of demands, or a target of
attention, depending on what the intimidation, coercion, or propaganda is primarily sought.
At the European Union level, the crime of terrorism has been defined by the
Parliamentary Assembly of the Union as:71
Any offence committed by individuals or groups resorting to violence or threatening to use
violence against a country, its institutions, its population in general or specific individuals
which, being motivated by separatist aspirations, extremist ideological conceptions, fanati-
cism or irrational and subjective factors, is intended to create a climate of terrors among
official authorities, certain individuals or groups in society, or the general public.
Three practical distinctions between terrorist and criminal conduct have been made
earlier in this chapter, concerning the focus, participants in, and victims of terror-
ism. The two definitions of terrorism just cited contain three further common
threads: firstly, that the victims or physical target(s) of a terrorist act (a building,
or people) are not the primary target of the act (the target against whom a message
is being sent, usually a government or international organisation); next, the purpose
of the threat or violence is to intimidate and create a situation of fear or terror (hence
the term terrorism) or to persuade or dissuade the primary target to do or abstain
from doing something; and, finally, that this is done to advance an ideological,
political, or religious cause.
2.2.2 Objective Versus Subjective Definitions of the Term
The sticking point in achieving international consensus on a definition of the term is

not so much with the technical wording of what physical conduct amounts to a
69
This definition was put to the United Nations Crime Branch by Schmidt in 1992 (ibid). See also
Schmid (2004).
70
This definition comes from an earlier text by Schmidt and Jongman (1988, p. 5).
71
Recommendation 1426 (1999) of the Parliamentary Assembly of the European Union,
European Democracies Facing up to Terrorism, 23 September 1999, para 5. See also the
much more precise definition within article 3(1) of the European Council Common Position of
27 December 2001.
terrorist act. The problem lies more with what the purpose of the conduct is. This, as
discussed earlier, is particularly controversial in the context of secession and the
boundaries of permissible conduct by a peoples in pursuit of their self-determina-
tion. A number of States argue that a subjective analysis and definition of such
conduct (by considering its purpose) should therefore be made. The UN Office on
Drugs and Crime reports that Arab States such as Libya, Syria and Iran have all
campaigned for a definition that excludes acts of freedom fighters from the
international definition of terrorism by employing the argument that a justified
goal may be pursued by any available means.72
While these positions are firmly held by a small number of States, the majority of
States adhere to an objective definition of terrorism (one which does not take into
account the motives of the conduct). In 1994, the UN General Assembly adopted
the Declaration on Measures to Eliminate International Terrorism.73 The Declara-
tion was based on the notion of peace and security and the principle of refraining
from the threat or use of force in international relations.74 It pronounced that
terrorism constitutes a grave violation of the purpose and principles of the United
Nations.75 While it did not purport to define terrorism, it did say that criminal acts
intended or calculated to provoke a state of terror in the general public for political
purposes are in any circumstances unjustifiable:76
The States Members of the United Nations solemnly reaffirm their unequivocal condemna-
tion of all acts, methods and practices of terrorism, as criminal and unjustifiable, wherever
and by whomever committed, including those which jeopardise the friendly relations among
States and peoples and threaten the territorial integrity and security of States. [emphasis
added]
In reaffirming the Declaration in 1995,77 the General Assembly was even more
precise on this point:78
72
United Nations Office on Drugs and Crime, Definitions of Terrorism (n 67).
73
GA Res 49/60 (n 25).
74
Ibid, as is evident through its preamble.
75
Ibid, para 2.
76
Ibid, para 1.
77
GA Res 50/53, UN GAOR, 50th Sess, 87th Plen Mtg, UN Doc A/Res/50/53 (1995), para 3.
78
Ibid, para 2. See also common para 2 of the following resolutions of the General Assembly: GA
Res 51/210, 51st Sess, 88th Plen Mtg, UN Doc A/Res/51/210 (1996); GA Res 52/165, UN GAOR,
52nd Sess, 72nd Plen Mtg, UN Doc A/Res/52/165 (1997); GA Res 54/110, UN GAOR, 54th Sess,
76th Plen Mtg, UN Doc A/Res/54/110 (1999); GA Res 55/158, UN GAOR, 55th Sess, 84th Plen
Mtg, UN Doc A/Res/55/158 (2000); GA Res 56/88, UN GAOR, 56th Sess, 85th Plen Mtg, UN Doc
A/Res/56/88 (2001); GA Res 57/27, UN GAOR, 57th Sess, 52nd Plen Mtg, UN Doc A/Res/57/27
(2002); GA Res 58/81, UN GAOR, 58th Sess, 72nd Plen Mtg, UN Doc A/Res/58/81 (2003); and
GA Res 59/46, UN GAOR, 59th Sess, 65th Plen Mtg, UN Doc A/Res/59/46 (2004). See further:
GA Res 61/40, UN GAOR, 61st Sess, 64th Plen Mtg, UN Doc A/Res/61/40 (2007), preambular
para 19, and operative para 4; GA Res 61/171, UN GAOR, 61st Sess, 81st Plen Mtg, UN Doc
A/Res/61/171 (2007), preambular para 12; GA Res 62/71, UN GAOR, 62nd Sess, 62nd Plen Mtg,
UN Doc A/Res/62/71 (2008), preambular para 19, and operative para 4; and GA Res 62/159, UN
GAOR, 62nd Sess, 76th Plen Mtg, UN Doc A/Res/62/159 (2008), preambular para 11.
Reiterates that criminal acts intended or calculated to provoke a state of terror in the general
public, a group of persons or particular persons are in any circumstances unjustifiable,
whatever the considerations of a political, philosophical, ideological, racial, ethnic,
religious or any other nature that may be invoked to justify them; [emphasis added]
Of even greater value in this respect, according to the Executive Director of the
International Policy Institute for Counter-Terrorism, is the Security Councils
resolution 1269 (1999).79 While the resolution also fails to define terrorism, it
clearly takes an objective approach to the question of terrorist conduct, stating
that the Security Council:80
Unequivocally condemns all acts, methods and practices of terrorism as criminal and
unjustifiable, regardless of their motivation, in all their forms and manifestations, wherever
and by whomever committed, in particular those which would threaten international peace
and security; [emphasis added]
Resolution 1373 (2001) also points to an objective approach, paragraph 3(g) of the
resolution calling upon States to ensure that claims of political motivation are not
recognized as grounds for refusing requests for the extradition of alleged terror-
ists.81 Security Council resolution 1566 (2004) further provides as follows:82
Recalls that criminal acts, including against civilians, committed with the intent to cause
death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of
terror in the general public or in a group of persons or particular persons, intimidate a
population or compel a government or an international organization to do or to abstain from
doing any act, which constitute offences within the scope of and as defined in the interna-
tional conventions and protocols relating to terrorism, are under no circumstances justifi-
able by considerations of a political, philosophical, ideological, racial, ethnic, religious or
other similar nature, and calls upon all States to prevent such acts and, if not prevented, to
ensure that such acts are punished by penalties consistent with their grave nature; [emphasis
added].
79
Ganor (2000).
80
SC Res 1269, UN SCOR, 4053rd Mtg, UN Doc S/Res/1269 (1999). See also Roach (2007) and
Saul (2007).
81
SC Res 1373, UN SCOR, 5385th Mtg, UN Doc S/Res/1373 (2001).
82
SC Res 1566, UN SCOR, 5053rd Mtg, UN Doc S/Res/1566 (2004), para 3. See also the United
Nations Office on Drugs and Crime, Handbook on Criminal Justice Responses to Terrorism
(United Nations, New York, 2009), p. 40, as well as the following resolutions of the Security
Council: SC Res 1617, UN SCOR, 5244th Mtg, UN Doc S/Res/1617 (2005), preambular para 2;
SC Res 1735, UN SCOR, 5609th Mtg, UN Doc S/Res/1735 (2006), preambular para 2; SC Res
1787, UN SCOR 5795th Mtg, UN Doc S/Res/1787 (2007), preambular para 2; SC Res 1805, UN
SCOR, 5856th Mtg, UN Doc 1805 (2008), preambular para 1; SC Res 1617, UN SCOR, 5244th
Mtg, UN Doc S/Res/1617 (2005), preambular para 2; and SC Res 1822, UN SCOR, 5928th Mtg,
UN Doc S/Res/1822 (2008), preambular para 2.
2.2.3 International Conventions Relating to Terrorism
Chapter 3 will consider in more detail the 13 universal terrorism-related conven-

tions, all of which have entered into force (see Sect. 3.1.1). The number and scope
of these conventions might, at first instance, seem impressive and comprehensive.
They have, however, various limitations. To begin with, they only apply to States
parties to the conventions. Beyond this, the conventions are of limited application
because of the very precise subject matter of each treaty. The conventions are not of
general application but, rather, relate to specific situations in which terrorist acts
might have effect, whether on board aircraft, in airports or on maritime platforms.
The only treaty with the potential to impact a wider audience and scope of
activity is the International Convention for the Suppression of the Financing of
Terrorism (the Suppression of Financing Convention).83 This is said for two
reasons. Firstly, the Convention mirrors much of the suppression of financing
obligations contained in Security Council resolution 1373 (2001). As a resolution
binding upon all members of the United Nations,84 this has had a significant
impact upon the status of the Convention. Prior to 11 September 2001, there
were just four States parties to the Convention and, accordingly, the Convention
was not in force. Due at least in part to resolution 1373 (2001) and the work
of the Counter-Terrorism Committee, there are now 160 States parties to the
Convention.85
The Suppression of Financing Convention is also of greater relevance because
of the wording of article 2(1)(b) of the Convention. Although this provision does
not purport to define the term terrorism, it explains (for the purpose of prohibit-
ing the financing of terrorist entities or operations) what type of acts may not be
financed:
Any other act intended to cause death or serious bodily injury to a civilian, or to any
other person not taking an active part in the hostilities in a situation of armed conflict,
when the purpose of such act, by its nature or context, is to intimidate a population, or
to compel a government or an international organization to do or to abstain from doing
any act.
The Convention does therefore have some potentially wider application and is
useful for States in determining the type of conduct they are to prohibit.
83
International Convention for the Suppression of the Financing of Terrorism, opened for signature
10 January 2000, 2179 UNTS 232 (entered into force 10 April 1992).
84
By application of article 25 of the Charter of the United Nations.
85
Counter-Terrorism Committee, International Law and Terrorism, online: http://www.un.org/
sc/ctc/law.shtml (as accessed on 22 August 2008).
2.2.4 The Draft Comprehensive Convention on International

Terrorism
Also considered in Chap. 3 is the work undertaken since 2000 towards establish-
ing a comprehensive convention against terrorism (see Sect. 3.1.2). One of the
expected sticking points in the progress of this work has been that of definitions,
not just in terms of defining what amounts to a terrorist act (draft article 2),
but also with regard to the wording of draft article 18, which concerns exemp-
tions. In particular, the definition and/or inclusion of acts of armed forces
or parties to a conflict (this being relevant to the proposed limited exemptions
from jurisdiction and/or liability under the Convention); whether foreign occu-
pation should be included within that category of exemptions; and whether
the activities of military forces should be governed or in conformity with
international law. Draft article 18 has been described by the Chairman of the
Committee as the crux of the Convention.86 Hinging upon these matters has been
a lack of consensus on a preamble. The Draft Convention definition of terrorist
acts is as follows:
Article 2
1. Any person commits an offence within the meaning of this Convention if that person, by
any means, unlawfully and intentionally, causes:
(a) Death or serious bodily injury to any person; or
(b) Serious damage to public or private property, including a place of public use, a State
or government facility, a public transportation system, an infrastructure facility or
the environment; or
(c) Damage to property, places, facilities, or systems referred to in paragraph 1 (b) of this
article, resulting or likely to result in major economic loss,
when the purpose of the conduct, by its nature or context, is to intimidate a population, or to
compel a Government or an international organization to do or abstain from doing any act.
2. Any person also commits an offence if that person makes a credible and serious threat to
commit an offence as set forth in paragraph 1 of this article.
3. Any person also commits an offence if that person attempts to commit an offence as set
forth in paragraph 1 of this article.
4. Any person also commits an offence if that person:
(a) Participates as an accomplice in an offence as set forth in paragraph 1, 2 or 3 of this
article;
(b) Organizes or directs others to commit an offence as set forth in paragraph 1, 2 or 3 of
this article; or
(c) Contributes to the commission of one or more offences as set forth in paragraph 1,
2 or 3 of this article by a group of persons acting with a common purpose. Such
contribution shall be intentional and shall either:
(i) Be made with the aim of furthering the criminal activity or criminal purpose of the
group, where such activity or purpose involves the commission of an offence as
set forth in paragraph 1 of this article; or
86
Ad Hoc Committee Established by General Assembly Resolution 51/210, UN Press Release
L/2993.
(ii) Be made in the knowledge of the intention of the group to commit an offence as
set forth in paragraph 1 of this article.
The very real advantage of the definition proposed is that it is comprehensive

in nature, rather than operational and limited to addressing particular types of
terrorist acts, or potential targets, or potential means of furthering terrorist
activities. It is therefore a great pity that scepticism surrounds the realisation of
the Draft Convention.
2.2.5 United Nations High-Level Panel Definition of Terrorism
Albeit non-binding, mention should be made of the 2004 report of the Secretary-
Generals High-level Panel on Threats, Challenges and Change in which terrorism
was described as:87
. . .any action, in addition to actions already specified by the existing conventions on aspects
of terrorism, the Geneva Conventions and Security Council resolution 1566 (2004), that is
intended to cause death or serious bodily harm to civilians or non-combatants, when the
purpose of such an act, by its nature and context, is to intimidate a population, or to compel
a Government or an international organization to do or to abstain from doing any act
[emphasis added].
There are two problems with this definition, corresponding to each of the empha-
sised sections of text in the quotation. Firstly, the definition does not confine itself
to the extant terrorism-related conventions. That is, it goes further than the
description within Security Council resolution 1566 (2004), discussed next, of
acts to be suppressed in the fight against terrorism by expressing itself to be in
addition to actions already specified within that resolution. The UN Special
Rapporteur on counter-terrorism has expressed dissatisfaction with this approach,
instead advocating for precision by restricting terrorism to the cumulative character-
istics set out within resolution 1566 (2004).88 This is a matter to be considered in
Sect. 2.3 below.
Furthermore, the definition within the High-Level Panels report is potentially
confusing because of its imprecise reference to civilians or non-combatants.
By doing so, the definition immediately invokes war-time terminology which has
87
High-level Panel on Threats, Challenges and Change, A More Secure World: Our Shared
Responsibility, UN Doc A/59/565 (2004), para 164(d).
88
Report of the UN Special Rapporteur on the promotion and protection of human rights while
countering terrorism, Martin Scheinin, The Protection and Promotion of Human Rights While
Countering Terrorism, UN Doc E/CN.4/2006/098 (2005), para 36.
2.3 A Comprehensive, Concise, and Human Rights-Based Approach to Defining Terrorism 27
significant implications and consequences under international humanitarian law,

whereas it has already been observed in this chapter that acts of terrorism predomi-
nantly occur during peacetime.
2.2.6 United Nations Resolutions on Terrorism
Chapter 3 explains the development of General Assembly and Security Council

resolutions on the subject of terrorism and counter-terrorism (see Sect. 3.2 therein).
What is relevant, for the purposes of this chapter, is to recognise the absence of an
express definition of the term terrorism within any of those resolutions. This
includes resolutions 1269 (1999) and 1373 (2001) of the Security Council, resolu-
tions through which important obligations upon member States of the United
Nations were established.
There is one resolution of the Security Council, however, which is of consid-
erable value. Although it does not express itself as establishing a universally
accepted definition of the term terrorism, Security Council resolution 1566 (2004)
called on all States to cooperate fully in the fight against terrorism and, in doing
so, to prevent and punish acts that have three cumulative characteristics.89 The
United Nations Special Rapporteur on the promotion and protection of human
rights and counter-terrorism has expressed support for this approach.90 This is the
subject of consideration next.
2.3 A Comprehensive, Concise, and Human Rights-Based

Approach to Defining Terrorism
As concluded to this point, none of the 13 conventions on anti-terrorism contain a

comprehensive definition of the term terrorism, but are instead confined to
specific subjects, whether air safety, maritime navigation and platforms, the protec-
tion of persons, or the suppression of the means by which terrorist acts may be
perpetrated or supported. Neither do resolutions of the various United Nations
bodies adopt a definition, save that the General Assembly and Security Council
have expressed that all acts of terrorism are unjustifiable regardless of their moti-
vation. In the first substantive report of the Special Rapporteur on counter-terrorism
under his mandate, reflections and recommendations were made concerning the
proper characterisation of terrorism and the consequent definitional requirements
of proscribing terrorist conduct.
89
SC Res 1566 (n 82), para 3.
90
Report of the UN Special Rapporteur on Counter-Terrorism (n 88), para 38.
2.3.1 Links to Existing Operational Definitions

(Trigger Offences)
The first observation to be made is that four relatively recent documents utilise a
very useful trigger in determining what conduct, in the absence of a comprehensive
definition, should be characterised as terrorist by linking the term to existing
conventions on terrorism. The first of these documents is the Council of Europe
Convention on the Prevention of Terrorism, adopted in May 2005, which defines a
terrorist offence as any of the offences within 10 of the 12 anti-terrorism
conventions in force (excluding the Tokyo Convention on Offences and Certain
Other Acts Committed on Board Aircraft and the Convention on the Marking of
Plastic Explosives for the Purpose of Detection).91 All of the offences within the
COE Convention are thus linked to the offences created by and definitions within
the universal conventions on countering terrorism that are currently in force. Next,
in proscribing the financing of certain conduct, article 2(1)(a) of the Convention for
the Suppression of the Financing of Terrorism takes a similar approach, linking
itself to 9 of the 11 other terrorism conventions in force at that time. Finally,
Security Council resolution 1566 (2004), as well as the Report of the Secretary-
Generals High-level Panel on Threats, Challenges and Change, also make refer-
ence to conduct prohibited under the existing conventions on aspects of terrorism.92
The use of the counter-terrorism conventions as a trigger for determining what
conduct is to be proscribed in the fight against terrorism is, in the absence of a
universal and comprehensive definition of terrorism, advocated by the UN Special
Rapporteur as the proper starting point.93 Although subject-specific, the conven-
tions are universal in nature, so that the use of offences described in them can be
treated as broadly representative of international consensus. This approach must
be qualified in one respect, to note that this linkage is not applicable in the case of
the Convention on the Marking of Plastic Explosives. Because that Convention
does not actually proscribe any conduct, but instead places obligations upon States
relating to the marking of explosives, it cannot be used as a trigger offence
treaty.94
By itself, however, the use of trigger offences is not sufficient to determine what
conduct is truly terrorist in nature. To that extent, the expression of the link to
existing conventions within the High-Level Panel report is not fully satisfactory.
91
Council of Europe Convention on the Prevention of Terrorism, opened for signature 16 May
2005, 16 CETS 196 (entered into force 1 June 2007). The list of conventions mirrors the list
contained within the International Convention for the Suppression of the Financing of Terrorism,
but also includes the latter Convention.
92
SC Res 1566 (n 82) para 3; and Report of the Secretary-Generals High-level Panel on Threats,
Challenges and Change (n 87) para 164(d).
93
As advocated in his report (n 88) para 33.
94
Convention on the Marking of Plastic Explosives for the Purpose of Detection, opened for
signature 1 March 1991, ICAO Doc 9571 (entered into force 21 June 1998), articles 2 and 3(1).
The point can be illustrated with reference to the Tokyo Convention on Offences
and Certain Other Acts Committed on Board Aircraft. The Convention calls on
States to establish jurisdiction over acts that may or do jeopardise the safety of a
civil aircraft, or of persons or property therein, or which jeopardise good order and
discipline on board.95 While this would certainly capture conduct of a terrorist
nature, the description of acts over which States must establish jurisdiction is very
broad and likely also to include conduct with no bearing at all to terrorism. Thus,
the High-Level Panel formulation of any action, in addition to actions already
specified by the existing conventions on aspects of terrorism is problematic, since
not all acts caught under these conventions (the Tokyo Convention being a prime
example) will be of a terrorist nature. It is notable in that regard that neither
the European Convention on the Prevention of Terrorism, nor the International
Convention on the Suppression of the Financing of Terrorism, link themselves to
the Tokyo Convention.
2.3.2 Cumulative Characteristics of Conduct to Be Suppressed
The solution to the problem just identified can be drawn from Security Council
resolution 1566 (2004). As explained earlier, the resolution calls on all States to
cooperate fully in the fight against terrorism and, in doing so, to prevent and punish
acts that have three cumulative characteristics, which are as follows:96
l Acts, including against civilians, committed with the intention of causing death
or serious bodily injury, or the taking of hostages; and
l Irrespective of whether motivated by considerations of a political, philosophical,
ideological, racial, ethnic, religious or other similar nature, also committed for
the purpose of provoking a state of terror in the general public or in a group of
persons or particular persons, intimidating a population, or compelling a govern-
ment or an international organization to do or to abstain from doing any act; and
l Such acts constituting offences within the scope of and as defined in the
international conventions and protocols relating to terrorism.
The third criterion represents the trigger-offence approach already identified. The
important feature of the resolution is the cumulative nature of its characterisation of
terrorism, requiring the trigger-offence to be accompanied with: the intention
of causing death or serious bodily injury (or the taking of hostages); for the purpose
of provoking terror, intimidating a population, or compelling a government or an
international organization to do or to abstain from doing any act. This cumulative
95
Convention on Offences and Certain Other Acts Committed on Board Aircraft, opened for
signature 14 September 1963, 704 UNTS 219 (entered into force 4 December 1969), articles 1(1)
and (4), and 3(2).
96
SC Res 1566 (n 82) para 3.
approach acts as a safety threshold to ensure that it is only conduct of a terrorist

nature that is identified as terrorist conduct. As properly stated by the UN Special
Rapporteur, not all acts that are crimes under national or even international law, are
acts of terrorism, nor should be defined as such.97
By way of further example, there are clear parallels between acts of terrorism
and other international crimes, including crimes against humanity (whether in the
terms set out in the Statute of the International Criminal Court, or the proscription
of such crimes under general international law). The Security Council, General
Assembly, and Commission on Human Rights have also identified terrorism as
something that: endangers or takes innocent lives; has links with transnational
organised crime, drug trafficking, money-laundering, and trafficking in arms as
well as illegal transfers of nuclear, chemical and biological materials; and is also
linked to the consequent commission of serious crimes such as murder, extortion,
kidnapping, assault, the taking of hostages and robbery.98 Notwithstanding such
linkages, counter-terrorism must be limited to the countering of offences within the
scope of, and as defined in, the international conventions and protocols relating to
terrorism, or the countering of associated conduct called for within resolutions of
the Security Council, when combined with the intention and purpose elements
identified in Security Council resolution 1566 (2004). That an act is criminal does
not, by itself, make it a terrorist act.
A cumulative approach is, in fact, the one taken in defining prohibited conduct
under the International Convention against the Taking of Hostages. Hostage-taking
is defined as the seizure or detention of a person (a hostage) accompanied by a
threat to kill, injure or continue to detain the hostage, in order to compel a third
party to do or to abstain from doing any act. To that extent, hostage-taking
(as described) encapsulates all three characteristics identified within Security
97
Special Rapporteur report (n 88) para 38.
98
See: SC Res 1269 (n 80) preambular para 1; SC Res 1373 (n 81) para 4; SC Res 1377, UN SCOR,
4413rd Mtg, UN Doc S/Res/1377 (2001) para 6; SC Res 1456, UN SCOR, 4688th Mtg, UN Doc S/
Res/1456 (2003) preambular paras 3 and 6; SC Res 1540, UN SCOR, 4956th Mtg, UN Doc S/Res/
1540 (2004) preambular para 8; GA Res 3034 (XXVII), UN GAOR, 27th Sess, 2114th Plen Mtg,
UN Doc A/Res/27/3034 (1972) para 1; GA Res 31/102, UN GAOR, 31st Sess, 99th Plen Mtg, UN
Doc A/Res/31/102 (1976) para 1; GA Res 32/147, UN GAOR, 32nd Sess, 105th Plen Mtg, UN
Doc A/Res/32/147 (1977) para 1; GA Res 34/145, UN GAOR, 34th Sess, 105th Plen Mtg, UN Doc
A/Res/34/145 (1979) para 1; GA Res 36/109, UN GAOR, 36th Sess, UN Doc A/Res/36/109 (1981)
para 1; GA Res 48/122, UN GAOR, 48th Sess, 85th Plen Mtg, UN Doc A/Res/48/122 (1993)
preambular para 7; GA Res 49/185, UN GAOR, 49th Sess, 94th Plen Mtg, UN Doc A/Res49/185
(1994) preambular para 9; GA Res 50/186, UN GAOR, 50th Sess, 99th Plen Mtg, UN Doc A/Res/
50/186 (1995) preambular para 12; GA Res 52/133, UN GAOR, 52nd Sess, 70th Plen Mtg, UN
Doc A/Res/52/133 (1997) preambular para 11; GA Res 54/164 54/164, UN GAOR, 54th Sess,
83rd Plen Mtg, UN Doc A/Res/54/164 (1999) preambular para 13; GA Res 56/160, UN GAOR,
56th Sess, 88th Plen Mtg, UN Doc A/Res/56/160 (2001) preambular para 18; GA Res 58/136, UN
GAOR, 58th Sess, 77th Plen Mtg, UN Doc A/Res/58/136 (2004) preambular para 8; GA Res 58/
174, UN GAOR, 58th Sess, 77th Plen Mtg, UN Doc A/Res/ 58/174 (2003) preambular para 12;
CHR Res 2001/37, UN Doc E/CN.4/Res/2001/37, preambular para 16 and operative para 2; and
UNCHR Res 2004/44, UN Doc E/CN.4/Res/2004/44, preambular para7.
Council resolution 1566, except that it does not expressly state that the motivations
of such conduct cannot render it justifiable.
It should be noted that the International Convention for the Suppression of Acts
of Nuclear Terrorism, is at odds with the cumulative approach described. The
Convention requires States parties to prohibit the possession or use of nuclear
material or devices with the intent: (1) to cause death or serious bodily injury;
or (2) to cause serious property damage or damage to the environment; or (3) to
compel a person, organisation or State to do or abstain from doing any act.99 The
wording of article 2(1) does not fit with Security Council resolution 1566 (2004),
treating the resolutions first two characteristics (intent to cause death or injury or
the taking of hostages; for the purpose of influencing conduct) as alternatives, rather
than cumulative requirements. The UN Special Rapporteur has expressed concern
that, just as in the case of the Tokyo Convention already discussed, this may capture
conduct that does not meet the general criteria for defining what acts are terrorist in
nature.100
By way of summary, it is essential to ensure that the term terrorism is confined
in its use to conduct that is of a genuinely terrorist nature. The three-step character-
isation of conduct to be prevented, and if not prevented punished, in the fight
against terrorism in Security Council resolution 1566 (2004) takes advantage of
the currently agreed upon offences concerning aspects of terrorism by using these
as trigger-offences and goes on to establish an appropriate threshold by requiring
that such offences are also committed with the intention of causing death or serious
bodily injury, or the taking of hostages and for the purpose of provoking a state of
terror, intimidating a population, or compelling a government or international
organization to do or abstain from doing any act.
2.3.3 Dealing with Threats of Terrorist Acts Outside the Scope

of Trigger Offences
A question that arises to this point is how a comprehensive, concise, and human
rights-based approach to defining terrorism is able to deal with potentially unique
threats of terrorism that are real and specific to a country, but fall outside the
offences defined in the international conventions and protocols relating to terror-
ism. The question goes to the heart of the problem: how can this be accomplished
without opening the door for the classification as terrorism of any undesired, but
99
International Convention for the Suppression of Acts of Nuclear Terrorism, adopted by the
General Assembly and opened for signature on 15 April 2005 under GA Res 59/290, UN GAOR,
59th Sess, 91st Plen Mtg, UN Doc A/Res/59/290 (2005) and entered into force 7 July 2007, article
2(1). See also paras (2) to (4) of article 2, which set out party and associated offences.
100
Special Rapporteur report (n 88) 41.
normal, criminal conduct. How can this be accommodated whilst retaining the
objective of dealing with conduct which is truly terrorist in nature?
The approach of the Special Rapporteur on counter-terrorism has been to suggest
replacing the third cumulative characteristic (terrorism trigger offences) with the
requirement that the defined conduct is one that corresponds to all elements of a
serious crime as defined by the law.101 In other words, if the conduct in question
amounts to a serious offence in domestic law and is intended to cause serious bodily
injury or death and is undertaken for the purpose of invoking a state of terror or
compelling a government or international organisation to do or abstain from doing
something, then this is sufficient to amount to terrorism even if the conduct does
not fall within the scope of the offences defined within the international terrorism-
related conventions. This approach is a sensible one. It retains the classic features of
terrorism of intending to cause death or serious bodily injury for the purpose of
invoking terror or influencing a government or international organisation. Although
it expands upon the third cumulative characteristic identified by the Security
Council, it restricts this expanded approach to serious offences prescribed by law.
The only level of uncertainty that this approach creates is the question of what
amounts to a serious offence in domestic law. Nevertheless, this is not an
impossible task, and it is one that allows for States to take into account serious
threats to them that are not encompassed within the existing terrorism-related
conventions.
2.3.4 Conduct in Support of Terrorist Offences
The approach just described is not inconsistent with a number of directions by, and
recommendations of, the Security Council concerning conduct in support of terror-
ist offences. By way of example, and although not phrased in mandatory language,
Security Council resolution 1624 calls on States to prohibit and prevent the
incitement to commit a terrorist act or acts.102 Again, the resolution does not define
what terrorist acts are. The answer lies in making reference back to the three-step
cumulative methodology of resolution 1566 (2004). Only the incitement of conduct
(which itself meets the three characteristics) should be treated as the incitement to
terrorism. While the incitement of other criminal conduct might be unlawful, and
making it punishable may in some cases even be required under article 20(2) of the
International Covenant on Civil and Political Rights (ICCPR) or article 4 of the
101
Special Rapporteurs report on his Mission to Spain (n 26) para 6.
102
SC Res 1624, UN SCOR, 5261st mtg, UN Doc S/Res/1624 (2005) para 1(a) and (b). See also SC
Res 1373 (n 81) para 5(3), which: Declares that acts, methods, and practices of terrorism are
contrary to the purposes and principles of the United Nations and that knowingly financing,
planning and inciting terrorist acts are also contrary to the purposes and principles of the United
Nations.
International Convention for the Elimination of Racial Discrimination (CERD),

such incitement should not be characterised as incitement to terrorism.
This confinement of conduct in support type offences and State obligations by
reference back to the three-step cumulative methodology of resolution 1566 (2004)
is equally applicable to the Security Councils calls upon States to themselves
refrain from providing any form of support to those involved in terrorist acts;103
prevent the commission of terrorist acts;104 bring to justice any person who
supports, facilitates, participates, or attempts to participate in the financing,
planning, preparation or commission of terrorist acts or provides safe haven to
terrorists;105 prevent the movement of terrorists;106 ensure, prior to the granting of
refugee status, that the person claiming asylum has not planned, facilitated or
participated in terrorist acts;107 and prevent and suppress all active and passive
support to terrorism.108
2.3.5 Further Definitional Requirements of Criminal

Proscriptions
In addition to the question of what type of conduct should be characterised as

terrorist in nature for the purpose of establishing criminal offences, human rights
law and the rule of law impose certain requirements. The UN Office on Drugs and
Crime explains that, in the definition of terrorist acts or terrorism-related crimes,
States must observe the rule of law and the basic human rights principle of
legality.109 Rather than being an obstacle, these requirements help in countering
the negative consequences of the lack of an agreed definition of terrorism. Article
15(1) of the ICCPR, which is an absolute and non-derogable right and enshrines the
principle of legality, is particularly instructive, providing that:
No one shall be held guilty of any criminal offence on account of any act or omission which
did not constitute a criminal offence, under national or international law, at the time when it
was committed. Nor shall a heavier penalty be imposed than the one that was applicable at
the time when the criminal offence was committed. If, subsequent to the commission of the
offence, provision is made by law for the imposition of the lighter penalty, the offender
shall benefit thereby.
103
SC Res 1373 (ibid) para 2(a).
104
Ibid para 2(b).
105
Ibid para 2(c) (d) and (e). See also SC Res 1566 (n 82) para 2, and SC Res 1456 (n 98) para 3.
106
SC Res 1373 (n 81) para 3(f) and (g).
107
SC Res 1373 (ibid) para 2(h).
108
SC Res 1456 (n 98) para 1.
109
Handbook on Criminal Justice Responses to Terrorism (n 82) p. 36. See also Duffy (2005,
pp. 9596); and the Report of the United Nations High Commissioner for Human Rights on the
protection of human rights and fundamental freedoms while countering terrorism, UN Doc
A/HRC/8/13 (2008), para 21.
The first requirement of article 15(1) is that the prohibition of terrorist conduct must
be undertaken by national or international prescriptions of law. The demands of
this expression are considered later in this book (see Chap. 10, Sect. 10.2.2) but, in
short, require that the law is adequately accessible and written with precision.110
Terrorism offences should therefore plainly set out what elements of the crime
make it a terrorist crime. Similarly, where any offences are linked to terrorist
acts, there must be a clear definition of what constitutes such acts.111 Arising from
the need for precision, and to avoid use of the fight against terrorism as an excuse to
unnecessarily extend the reach of criminal law, it is essential that offences created
under counter-terrorist legislation, along with any associated powers of investiga-
tion or prosecution, be limited to countering terrorism.
The final element of article 15 of the ICCPR concerns non-retroactivity. Any
provision defining a crime must not criminalise conduct that occurred prior to its
entry into force as applicable law. Likewise, any penalties are to be limited to those
applicable at the time that any offence was committed and, if the law has subse-
quently provided for the imposition of a lighter penalty, the offender must be given
the benefit of the lighter penalty.112
2.3.6 Summary
The foregoing discussion presents an approach to defining terrorism in a concise,

comprehensive and human rights-compatible way, drawn from approaches taken by
the UN Special Rapporteur on counter-terrorism, existing international and regional
terrorism-related conventions, the UN High-Level Panel on Threats, Challenges
and Change, and the Security Council. It is not impossible, nor in fact difficult, for
States to achieve the goal of defining terrorism in a way that is restricted to acts of a
truly terrorist nature. The advantage of doing so is not only that such an approach is
compatible with the human rights obligations of States, but that it also lends
considerably greater credibility to special counter-terrorist measures adopted by
States if it can be shown that these measures are restricted to terrorism and are not
being used as an excuse to abuse or unjustifiably expand upon executive powers.
The approach advocated can be summarised as follows:
1. The starting point is that terrorist acts are restricted to the three cumulative
characteristics identified by the Security Council in its resolution 1566 (2004),
namely:
110
Ibid.
111
Special Rapporteur report (n 88) para 46. See also the limited distribution resolution of the
Human Rights Council during its 7th Session, UN Doc A/HRC/7/L.20 (2008), para 15; and also its
resolution 7/7, UN Doc A/HRC/Res/7/7 (2008), para 16.
112
Special Rapporteur report (n 88) para 49; UN Doc A/HRC/7/L.20 (ibid) para 15; and HRC Res
7/7 (ibid) para 16.
2.4 Conclusions 35
l The taking of hostages, or acts committed with the intention of causing death
or serious bodily injury;
l Where such conduct is undertaken for the purpose of either (i) provoking a
state of terror, or (ii) compelling a government or international organisation
to do or abstain from doing something;
l And where the conduct falls within the scope of the trigger offences defined
in the international terrorism-related conventions.
2. Conduct falling outside the scope of the trigger offences might still be classified
as terrorist if it possesses the first two characteristics identified in resolution
1566 (2004) and corresponds to all elements of a serious crime as defined
by law.
3. The approaches identified in items 1 and 2 above are applicable to the treatment
of conduct in support of terrorist offences.
4. Finally, the definition of terrorist conduct (i) must not be retroactive, and (ii)
must be adequately accessible and written with precision so as to amount to a
prescription of law.
2.4 Conclusions
The nature of terrorism is complex. A range of acts might fall within the ambit of a
terrorist act, depending on how that term is defined and perhaps even upon the
entity using the term. Terrorism will almost invariably involve criminal acts. It may
also be perpetrated during armed conflict. Terrorism can, however, be distinguished
from normal criminal conduct by various means. The focus of terrorist acts tends
to be continuous, developing and even escalating, rather than based upon quite
precise short-term goals. Terrorist organisations operate in a prepared and secure
way, while at the same time relying upon wide dissemination of their conduct and
ideology, and upon the recruitment of as many followers as possible. While
criminal acts are targeted, terrorist ones are often indiscriminate. Relating also to
targets, terrorism employs differential targeting whereby the physical targets of an
act are used as tools to manipulate and put pressure upon an entity against whom the
action is ultimately being taken, i.e. a government or international organisation.
Inherent to the term terrorism, such acts are undertaken with the aim of intimida-
tion or creating a situation of fear. Finally, terrorist acts are motivated by certain
ideological, political or religious causes.
Ideological motivations are seen by most as the primary distinguishing feature of
terrorist conduct from ordinary criminal offending. This affects the views of the
perpetrator of terrorist acts as to the value of and culpability for such acts. On a more
precise level, terrorist conduct tends to be motivated by secession, insurgency,
regional retribution, and/or the global jihad. While the particular individual terrorist
may be driven by more personal goals, the motivations described are those of the
person or entity by whom the individual actor is recruited and directed to act.
These various features support a distinct approach to the criminalisation of

terrorist conduct. The political interests of most States tend to favour a distinctive
approach too. Despite this, there remains no concise, comprehensive and universal
legal definition of the term terrorism. The only commonly held view is that any
definition must be objective, such that terrorist conduct is unjustifiable whatever the
considerations that may be invoked to justify them. Despite the lack of a universal
definition, this chapter has presented a definitional approach which draws from
existing conventions, resolutions, and commentary; is not difficult in its applica-
tion; and is restricted to acts of a truly terrorist nature.
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Chapter 2

The Nature and Definition of Terrorism

2.1 The Nature of Terrorism

A. Conte, Human Rights in the Prevention and Punishment of Terrorism, 7

2.1.1 Terrorism and Crime

2.1.2 Terrorism and Warfare

Researchers are divided in their opinions on whether terrorism should be considered

2.1.3 Features of Terrorist Conduct

Whether treated as crimes or acts of warfare, terrorist conduct is distinguishable by

Terrorist acts have, in contrast, shown themselves to be generally continuous, given

2.1.4 The Ideological Nature of Terrorism

It is an all-too-common assertion that one persons terrorist is anothers freedom

Early resolutions of the General Assembly addressing the issue of terrorism

A number of subsequent General Assembly resolutions echoed this affirmation,

2.1.4.2 Insurgency and Regional Retribution

2.1.4.3 Islam and the Global Jihad

Finally, closely linked to the ideological nature of terrorism, is the question of

and Crusaders,38 purports to be a fatwa (religious ruling) requiring the killing of

2.1.5 Rationalising a Distinct Approach to Terrorism

Fatherland and Liberty movement in Spain,56 the Kurdistan Workers Party in

2.2 Reaching Consensus on a Legal Definition of Terrorism

The failure of the international community to achieve consensus on a global

2.2.1 Attempts to Define Terrorism

and extending it to peacetime.69 Terrorism would then be defined as the peacetime

2.2.2 Objective Versus Subjective Definitions of the Term

The sticking point in achieving international consensus on a definition of the term is

2.2.3 International Conventions Relating to Terrorism

Chapter 3 will consider in more detail the 13 universal terrorism-related conven-

2.2.4 The Draft Comprehensive Convention on International

The very real advantage of the definition proposed is that it is comprehensive

2.2.5 United Nations High-Level Panel Definition of Terrorism

significant implications and consequences under international humanitarian law,

2.2.6 United Nations Resolutions on Terrorism

Chapter 3 explains the development of General Assembly and Security Council

2.3 A Comprehensive, Concise, and Human Rights-Based

As concluded to this point, none of the 13 conventions on anti-terrorism contain a

2.3.1 Links to Existing Operational Definitions

2.3.2 Cumulative Characteristics of Conduct to Be Suppressed

approach acts as a safety threshold to ensure that it is only conduct of a terrorist

2.3.3 Dealing with Threats of Terrorist Acts Outside the Scope

2.3.4 Conduct in Support of Terrorist Offences

International Convention for the Elimination of Racial Discrimination (CERD),

2.3.5 Further Definitional Requirements of Criminal

In addition to the question of what type of conduct should be characterised as

The foregoing discussion presents an approach to defining terrorism in a concise,

These various features support a distinct approach to the criminalisation of

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